Sealey & Archer
[2008] FamCAFC 142
•16 September 2008
FAMILY COURT OF AUSTRALIA
| SEALEY & ARCHER | [2008] FamCAFC 142 |
| FAMILY LAW - APPEAL – CHILDREN – with whom a child lives and spends time with – relocation interstate from Sydney – where the trial judge did not allow the wife to take the children to Melbourne to live with her and her new husband – where the trial Judge provided for the children to live and spend time with both the husband and the wife in Sydney – whether the trial judge and Family Consultant misunderstood the wife’s proposals – whether the trial judge erred in requiring the wife to maintain residences in two states – whether the trial judge erred in deciding that shared equal time would be in the children’s best interests – whether the trial judge adequately considered the relationships between the parents and children – whether the trial judge erroneously found that the husband was entitled to participate in every aspect of the children’s lives – whether the trial judge erroneously placed an onus on the wife to justify her decision to move to Melbourne – whether the trial judge erroneously found that the wife showed controlling behaviour – whether “shared parenting” was appropriate – whether the trial judge erred in making an adverse view of the wife’s new husband – no merit found in these grounds – appeal dismissed FAMILY LAW - COSTS – the wife to pay the husband’s costs of and incidental to appeal |
| Family Law Act 1975 (Cth), sections 60CA, 60CC, 61DA, 65DAA |
| A v A Relocation Approach (2000) FLC 93-035 D and SV (2003) FLC 93-137 Taylor & Barker (2007) FLC 93-345 |
| APPELLANT: | Ms Sealey |
| RESPONDENT: | Mr Archer |
| FILE NUMBER: | SYF | 3395 | of | 2005 |
| APPEAL NUMBER: | EA | 77 | of | 2007 |
| DATE DELIVERED: | 16 September 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn and Thackray JJ |
| HEARING DATE: | 10 December 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 May 2007 |
| LOWER COURT MNC: | [2007] FamCA 432 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC and Ms Knox |
| SOLICITOR FOR THE APPELLANT: | Aitken Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Edwards Doolan |
Orders
That the appeal be dismissed.
That the wife pay the husband’s costs of and incidental to the appeal, with such costs to be assessed in default of agreement and to be payable within three months of the date of agreement or assessment.
IT IS NOTED that publication of this judgment under the pseudonym Sealey & Archer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 77 of 2007
File Number: SYF 3395 of 2005
| Ms Sealey |
Appellant
And
| Mr Archer |
Respondent
REASONS FOR JUDGMENT
This is an appeal by the wife, Ms Sealey, against orders made by Le Poer Trench J on 15 May 2007 in proceedings between the wife and the husband, Mr Archer, relating to the future living arrangements for the three children of the parties’ marriage.
By his orders his Honour in effect refused the wife’s application to be permitted to relocate the children’s residence from Sydney to Melbourne, and instead put in place arrangements whereby the children would live with the husband in Sydney, but spend defined time with the wife during school holidays and in alternate weeks during school terms if the wife elected to come to Sydney for the times in question.
Background
The parties had married in early 1994. Their first child, a son, T, was born in August 1995 and was thus eleven at the time of the trial judge’s orders. The parties’ second child, a daughter, J, was born in November 1997, and their third child, a daughter, A, was born in September 2001; the girls were thus aged nine and five at the time of his Honour’s orders.
Apart from the period August 1996 to June 2001 when they lived in New Zealand, the family always lived in Sydney.
The husband and wife separated in or about November 2004. Following the separation the wife entered into a relationship with Mr M, who is a resident of Victoria.
On 6 July 2005 the husband and the wife entered into consent orders which provided for a shared parenting arrangement for the care of the children, whereby the children spent eight nights a fortnight with the wife and six with the husband, and for a property settlement, whereby the husband retained the former matrimonial home and the wife was paid a sum of money.
The trial judge found that by December 2005 the relationship between the wife and Mr M “had developed to a point where the [wife] decided she would like to move with the children to [a town outside Melbourne] to live with [Mr M]”.
On 20 December 2005 the wife filed an application seeking that she “be permitted to relocate to Victoria with the children” and that the husband have “defined contact” including half of the school holidays.
In June 2006 the wife and Mr M purchased a home in a town outside Melbourne. They were subsequently married in September 2006.
In December 2006 Mr M entered into consent orders with his former wife. According to the trial judge, the effect of the orders was to require Mr M to live in the eastern and south-eastern suburbs of Melbourne and to provide for his children from his former marriage to live with him on an equal time basis.
In March 2007 the wife, who had been living in rented premises when she was in Sydney, moved to a property at P in Sydney, which was owned by her own mother and for which she paid a reduced rent.
It seems that the wife lived (and continues to live) in Melbourne with Mr M when her children are with the husband under the consent orders providing for shared care.
Apparently in preparation for the hearing of the wife’s application “to relocate” the children to Victoria, a Family Report was prepared by a Family Consultant, Ms Brace, in November 2006.
The wife’s application was then heard by Le Poer Trench J on 30 April and 1 to 3 May 2007.
The trial judge’s orders and reasons for judgment in summary
On 15 May 2007 his Honour delivered reasons for judgment and made orders which discharged the parenting orders of 6 July 2005 and provided, in summary, that:
·the parents were to have equal shared responsibility for the children;
·the children were to live with the wife “during school times if the [wife] so elects as follows:
(i) from Monday at the commencement of the school day to the conclusion of school the following Friday in each alternate week; and
(ii) upon seven days’ written notice, the children can continue to live with the [wife] … until the following Monday at the commencement of the school day, or if a long weekend until the following Tuesday at the commencement of the school day”
and during defined periods in the school holidays;
·at all other times the children were to live with the husband.
His Honour’s reasons for judgment were lengthy. In the first two hundred or so paragraphs and after having set out a brief background history (largely in the terms which we have done above), his Honour recorded at considerable length the evidence of both parents and of the Family Consultant.
His Honour then explained (in paragraph 213) that under s 60CA of the Family Law Act 1975 (Cth) (“the Act”) he was required, in deciding whether to make a particular order, to regard the best interests of the child as the paramount consideration, and that in determining what is in the child’s best interests, he was required to consider the “primary considerations” and “additional considerations” in s 60CC.
His Honour then proceeded to make findings in relation to those considerations in paragraphs 219 to 255 of his reasons. We will refer to those findings to the extent necessary later when considering the wife’s grounds of appeal. His Honour did not at that point set out any conclusions which he had reached as a result of his consideration of s 60CC, although he did do this at a later point in his reasons.
Then having determined (at paragraphs 259 and 261) that the presumption of equal shared parental responsibility contained in s 61DA of the Act should apply in this case, his Honour turned as he was required to do (given that there was to be equal shared parental responsibility) to s 65DAA. That last-mentioned section requires the Court, in cases where there is to be equal shared parental responsibility, to consider whether it is in the child’s best interests to spend equal time with each parent, if it is reasonably practicable to do so, and if not significant and substantial time with each parent, again if it is reasonably practicable to do so.
Having referred briefly to the recommendation of the Family Consultant that “there be an equal shared time living arrangement for the children with their parents in Sydney” and also to the wife’s evidence concerning her ability to spend time with the children in Sydney given her decision to live in Melbourne with her new husband, his Honour concluded (at paragraph 265) “that if it is at all feasible the children should be able to live in a shared equal time parenting arrangement”.
Having then said that he would return to “this matter” (being, presumably, his conclusion that there should be an equal time arrangement, if at all feasible), his Honour next endeavoured to apply to this case the guidelines for so-called “relocation cases” contained in the Full Court decision of A v A Relocation Approach (2000) FLC 93-035 (as explained in the subsequent Full Court decision of D and SV (2003) FLC 93-137).
In so doing his Honour evaluated at length the advantages and disadvantages of each parent’s proposal, but without expressly concluding (at least at this point) which proposal would be in the children’s best interests. His Honour then expressly recognised that he was not restricted to making the orders sought by the parties (provided they were accorded procedural fairness). He also determined that because he had found that there ought to be an equal time arrangement subject to practicalities, there could not therefore be said to be an “undisputed residence parent”, and thus it was unnecessary for him to consider issues relating to a restraint on such a parent choosing the children’s residence.
Then under the heading “Balancing of all considerations under section 60CC”, his Honour said:
291. In my view the matters referred to by me as I dealt with the various sub sections of section 60CC lead to a conclusion that the children’s best interests are more likely to be promoted by the [husband] than by the [wife]. I will discuss this further later in these reasons.
Under the further heading “Conclusion”, his Honour then indicated that he would deal with certain issues raised by the wife, being that she had been the primary care-giver of the children, and the children’s capacity to cope with a change to the husband being the primary care-giver. There followed a discussion of some ten paragraphs in which his Honour can be read as being very critical of the wife because of her lack of understanding of the impact on the children of the development of her relationship with Mr M, and because of her continuing hostile attitude towards the husband. His Honour concluded this discussion with the following finding:
304. I find that the father’s proposals for the children’s future care are most likely of the parents competing proposals to best promote the children’s future emotional well being and their relationships with each of their parents. To that end it will ensure the children maintain a meaningful relationship with each parent.
Finally his Honour explained the orders which he proposed to make. His explanation for what can be termed his principal orders was as follows:
308. The orders of the court cannot reflect an equal shared time parenting arrangement for the children which I determine to be in their best interests for practical reasons. The [wife] will be residing in Melbourne. She will provide her children with as much of her time as she can reasonably manage. In the short term she has committed to living in Sydney every second week for four nights in order to participate in their care during school term time. Realistically all I can do is order that the children live with her in Sydney during that time or for an extension to seven nights from Monday evening to the following Monday morning each alternate week if she is able to facilitate that.
309. As stated earlier there should be an order for equal shared parental responsibility for the children.
310. The children should spend additional time with [the wife] during school holidays. The proposal for the children to spend the bulk of the holidays at the end of terms 1 and 3 in each school year together with some of the Winter and summer holidays with [the wife] seems appropriate. This will enable them to catch up on lost time with [the wife] during school term.
the issues raised by the grounds of appeal
The trial Judge’s understanding and consideration of the wife’s proposal
The wife’s first two grounds of appeal, which were argued together, assert that his Honour “erred in law in failing:
(1) … to set out accurately the proposals of the parties in relation to the future parenting of their children [and] [i]n particular, … to take into account that it was the wife’s proposal that she would reside permanently in Melbourne and not be available on the basis his Honour ultimately ordered to care for the children in Sydney.
(2) … to consider or take into account the long-term interests of the children in particular in relation to [the wife’s] proposal that she would reside permanently in Melbourne and, other than in the short-term, not be available to care for them in Sydney.”
The essence of these complaints appears to be that his Honour did not set out accurately the wife’s proposals. Her proposals included as her primary position that she be permitted to move the children to Melbourne, with her alternative position being that in the event that she was not permitted to move the children, she would come to Sydney each alternate week to spend time with the children, but that this would only be possible for a limited time.
While it is true that his Honour did not in the introductory stage of his reasons, nor indeed when evaluating the parties’ proposals in the context of the A and A guidelines, set out in precise terms the respective proposals of the parties, he expressly identified as early as paragraph 13 in his 327 paragraphs of reasons, that his decision would “necessarily see the children living in either Sydney or Melbourne”. Later in paragraph 177, he recorded that the wife had made it clear that she proposed “to live in Melbourne whether the children reside with her or not”.
There can thus be no question that his Honour did not understand that the wife’s primary proposal was that the children live with her in Melbourne. Moreover, this was clearly the proposal which he evaluated in the context of his evaluation of the parties’ proposals in paragraphs 278 to 285 of his reasons in the context of his application of the A v A guidelines.
However, the real heart of the wife’s complaints regarding his Honour’s identification of her proposals, appears to be his alleged failure to evaluate her alternative proposal for spending time with the children in Sydney, while herself living in Melbourne, and to appreciate that this proposed arrangement could be for a limited period of only about six months.
As indicated at the hearing of the appeal, we are somewhat perplexed by the wife’s complaint regarding his Honour’s treatment of her alternative proposal because, having clearly determined that the children should not move to live in Melbourne away from their father (see, for example, paragraphs 291, 300 and 304), his Honour then made orders for them to spend time with the wife in virtually identical terms to the orders in her proposed Minute of Orders Sought which were sought in the event that she was not permitted to “relocate the children to Melbourne”. (In this regard, reference is made to the Minute of Orders Sought by the Wife at Appeal Book 287 and the orders made by his Honour at Appeal Book 7.)
It is important to note that nowhere in the wife’s Minute of Orders Sought was there any suggestion that the alternative arrangement which she sought was to be of some limited duration, although some of her evidence might be so interpreted.
But in any event, his Honour clearly appreciated that the arrangement for the wife to be in Sydney each alternate week during school terms was “in the short term.” At paragraph 284 under the heading “The disadvantages of the father’s proposal” his Honour noted in both sub-paragraphs (a) and (e) that the children would spend slightly less time being cared for by their mother in the short term and considerably less time being cared for by their mother in the long term. His Honour noted that in the long term the wife may not be as involved in the children’s lives if she was unable to continue to spend each alternate week in Sydney during school term. His Honour also referred to the short term arrangements for the wife to live in Sydney each second week.
Further, as will be seen from paragraph 310 of his reasons (also set out earlier), his Honour endeavoured to compensate the children for the school term time lost with the wife by providing for them to spend additional time with her during the school holidays. It cannot, therefore, be contended that his Honour did not understand the wife’s alternative proposal.
We would also say in this context that we consider that his Honour’s orders as drafted would permit the wife weekend time with the children, if that is the only time she can be in Sydney. Moreover, we understood senior counsel for the husband to concede before us that this was so.
To the extent that the wife’s first two grounds complain that the arrangement put in place by his Honour did not take into account the long-term interests of the children, his Honour had clearly determined that the children’s best interests would be served by remaining in Sydney with their father, indeed ideally with both parents. But if the wife was not prepared to remain in Sydney, it is difficult to see what else his Honour could have done other than put in place the alternative proposal, which the wife had put forward in the event that she was not permitted to move the children to Melbourne.
It is important to note that in paragraphs 229 and 230 his Honour had found that the husband would be likely “to facilitate and encourage a close and continuing relationship between the children and their mother”.
For these reasons, we find no substance in the first two grounds of appeal.
We observe in passing and without intending any criticism of his Honour, that it is obviously useful for the reader if a judicial officer sets out early in his or her judgment in a parenting matter what the parties’ proposals are, not, we stress, by setting out verbatim the orders sought, but rather by providing a simple summary of what is the effect of the orders sought.
The Family Consultant’s understanding of the wife’s proposals and the weight given to her evidence
The third and fourth grounds of appeal are then directed to the Family Consultant’s understanding of the wife’s proposals and to his Honour’s reliance on the Consultant’s opinion, with it being asserted by Ground 3 that his Honour “erred in law in having regard to the conclusions reached by the Family Court counsellor [sic]:
(3)(a)… in that those conclusions were fundamentally flawed in that they were based upon an incorrect assessment of the issues in dispute and in particular did not take into account the wife’s position that she would live in Melbourne and not be available to care for the children in Sydney on a week to week basis.
(3)(b)… in circumstances where the counsellor [sic] conducted her interviews without regard to the consequences upon the children and their relationship with their mother in the event that the [wife] resided permanently in Melbourne and the children resided with [the husband] in Sydney.
(3)(c)… including but not limited to her assessment of the views expressed by the children in circumstances where some but not all of the parties’ respective proposals for their living arrangements were considered.”
Ground 4 then asserts:
That further or in the alternate to Ground 3(c), the learned trial judge erred in finding in the circumstances of the case that he could give “…significant weight to the wishes of the children [T] and [G] [sic]…” (Judgment ¶ 226)
In order to examine these grounds, it will be useful first to set out the evidence of the Family Consultant as recorded in his Honour’s reasons:
(a)At paragraph 189 his Honour quoted from the report of the Family Consultant in relation to T:
…[T] considered all of these things important. He clearly said that he would “rather live where I am now (Sydney)” but showed some ambivalence as to whether he wanted the current parenting arrangements to stay the same. [T] was unable to elaborate on how he thought future parenting arrangements might change.
(b)At paragraph 191 his Honour quoted from the report of the Family Consultant in relation to J:
Like her brother, [J] expressed a clear opinion of preferring Sydney to [the town near Melbourne] because of her school and her soccer team and her familiarity with the Sydney area…
(c)At paragraph 194 his Honour quoted further from the Family Consultant’s report:
…[T] and [J] each expressed strong views about wanting to remain in Sydney so that they are able to spend regular, frequent time with each parent…
It is not necessary to deal with the views of A because of her age.
His Honour then made findings about the views of the children in his consideration of s 60CC(3)(a) which concerns the children’s “views”. It will be seen that in making these findings his Honour placed considerable weight on the consultant’s evidence:
223. The views of the children are set out in the evidence of Ms Brace and the parties. In my opinion the most reliable expression of the children’s views are to be found in the evidence of Ms Brace. The children’s views as expressed to their parents and recorded in the parents [sic] evidence are likely to be influenced by concerns the children have for their parents and therefore may not represent genuinely held views. I should say by way of exception to that proposition in this case the [wife] in her evidence has set out the statements of both [T] and [J] when she told them she was to be married and live in Melbourne. Those statements are against the [wife’s] interests and should be given weight.
224. In submissions by the [wife] she says that the views of the children are not to be given any weight because the Family Consultant misunderstood the [wife’s] position in relation to the move to Melbourne. It is put that the Family Consultant did not understand that the [wife’s] proposal was to move to Melbourne with or without the children. Further the evidence of the Family Consultant was that she did not think the children understood that to be [the wife’s] position. Indeed the evidence of the [wife] and [Mr M] in relation to the [wife’s] ability to spend time with the children in Sydney is not that the [wife] would not come to Sydney each alternate week during school term and care for the children from Monday night to Friday night it is that the [wife] could not do that on a long term basis. [Mr M] said that he thought it would be sustainable for six months however he said he would support the [wife] if she wanted to continue that pattern for a longer period.
225. The [wife] in her evidence said she had told the children clearly before they saw the Family Consultant that she would not be living in Sydney after the Court case. She said she told them she would be living in Melbourne. I accept that the [wife] believes she did tell the children this however it seems that she told them with the same degree of clarity with which she told the Family Consultant. Given Ms Brace’s evidence either the children did not understand what the [wife] told them and the implications of same or alternatively they did not accept that she was being truthful. I think the first explanation is the most probable.
226. Clearly the children did understand that on [the wife’s] evidence that if they lived with her in Melbourne they would spend “big chunks” of time with [the husband] in Sydney and conversely if they lived with [the husband] in Sydney they would see big chunks of time with [the wife] who would be living in Melbourne. [T] and [J] are intelligent children. There is no suggestion from either parent or the Family Consultant that either child does not have the capacity to understand the broad parameters of their parents [sic] proposals or what those proposals might mean for them. On that basis I conclude I can give significant weight to the wishes of the children [T] and [J]. [A] is much younger and I do not conclude I can give any significant weight to any stated views of hers.
The gravamen of the wife’s complaints raised in Grounds 3 and 4 is that in preparing her report, the Family Consultant had not appreciated, as indeed she confirmed in her oral evidence (see transcript of 3 May 2007, pages 253-256 [Appeal Book 1094-7]), that the wife proposed to move to live in Melbourne even if the children were not permitted to move with her; thus she did not canvass this possible scenario with the children, nor then express any opinion or recommendation about it; and thus his Honour erred in placing the weight which he did on the Family Consultant’s evidence as to the children’s views (in the paragraphs of his reasons just set out).
However, we agree with the submissions of senior counsel for the husband, that it is clear from paragraph 224 of his Honour’s reasons that he was well aware that it was the wife’s position that the views of the children (as reported by the Family Consultant) should not be given any weight because the Family Consultant had not understood that the wife’s proposal was to move to Melbourne with or without the children.
Accordingly, it was necessary for his Honour to satisfy himself, as he did in paragraph 226, as to what, on the basis of the wife’s evidence, was the children’s understanding of what time they would spend with the other parent if they were to live in Sydney with the husband or Melbourne with the wife. It was on the basis of that understanding that his Honour was able to give “significant weight”, at least to the wishes of the two older children.
His Honour’s conclusions in paragraph 226 should also be read against what he had said earlier in paragraph 156 of his reasons:
156. In paragraph 26 of his affidavit the father says that on 16 November 2006 [J] said to family members at the dinner table the following:
“Mum says that if she cannot get the judge to say that us kids are moving to Melbourne, then we might have to live with Dad because Mum has to go to Melbourne.”
This statement indicates that [J] had a clear picture from [the wife] that … she was proposing to move to Melbourne with or without the children. The [wife’s] evidence is that she told the children that prior to the interviews which took place between the children and the Family Consultant on 14 November 2006. Given the proximity of the statement recorded in the [husband’s] affidavit to the interviews with the Family Consultant (two days before) it adds weight in my view to the views and wishes expressed by the children as recorded in the Family Report.
We thus consider that there is no substance in Grounds 3 or 4.
The alleged requirement for the wife to maintain residences in two States
Grounds 5 and 6 are related in that they assert respectively that his Honour “erred:
5. …in failing to have regard or sufficient regard to the effect upon the children of making orders whereby the wife was required to maintain two residences in different States of … Australia in order to comply with the Court’s Orders.
6. Further or in the alternate … in making orders which required the wife to maintain residences in two States of … [Australia] otherwise than as a transitional provision prior to the children taking up full-time residence in Melbourne.”
In support of these grounds, senior counsel for the wife relied only on his written submissions. Those submissions were, in summary, that if the wife was to have the time with the children provided to her under his Honour’s orders, she would have to maintain homes in both Sydney as well as in Melbourne, with there being no certainty that she could continue to occupy her mother’s unit in Sydney. There would then be the cost to her of alternative accommodation in Sydney together with the costs of frequent travel between Sydney and Melbourne; such financial implications had not, it was submitted, been taken into account by his Honour. It was further submitted that his Honour had not considered the effect on the children in living on a long-term basis in three homes, being the husband’s home in Sydney and the wife’s homes in Sydney and Melbourne.
Again, as was submitted by senior counsel for the husband (also in his written submissions), there was no actual requirement placed on the wife by his Honour in his orders for her to maintain residences in both Sydney and Melbourne and, to that extent, these two grounds can be regarded as misconceived. However to be fair to the wife, it is the practical effect of the orders with which she is concerned.
But it must be remembered that in the short term she does have the use of her mother’s Sydney unit. As to the long term, his Honour recognised, as we have already discussed when considering the first two grounds of appeal, that it is unlikely that the wife will be able to sustain the alternate weeks during school terms which his Honour’s orders provided she should have, and thus her time with the children will largely be limited to school holiday periods (presumably in her Melbourne home).
It cannot, in our view, be said that his Honour overlooked the practical difficulties which the wife faced because of her decision to move to Melbourne with or without the children. It must, however, be recognised that those practical difficulties were a result of the wife’s decision to live in Melbourne. They were not the result of, nor do they constitute, error on his Honour’s part. We reiterate that the orders made were in the form of the wife’s own alternative proposal.
The trial judge’s conclusion that “shared equal parenting” would be in the children’s best interests
By Ground 7 it is asserted that his Honour “erred in law:
7. …in proceeding to determine the case upon the basis that it was prima facie in the best interests of the children to be cared for in a regime of shared equal or nearly shared equal parenting when that is a matter for determination having regard to all of the factors required to be considered under the terms of the Act.”
Again this ground was not explored in the oral submissions of either counsel. In the written submissions of senior counsel for the wife it was stated (accurately, as will be seen from our earlier summary of his Honour’s reasons) that his Honour went through the s 60CC considerations in paragraphs 219 to 255 of his reasons; that at paragraph 265 he concluded that if it was “at all feasible the children should be able to live in a shared equal time parenting arrangement”; and that he “then dealt with the relocation aspects of the case, after he had already decided that it was in the children’s best interests to live in an equal time shared parenting regime”. It was then submitted that his Honour should have looked at “all of the circumstances of the case before making such a finding”.
We assume that by “all of the circumstances of the case” counsel was referring to what he had earlier termed “the relocation aspects of the case”, and that the “finding” to which he referred was that “it was in the children’s best interests to live in an equal time shared parenting regime”.
In his written submissions senior counsel for the wife then went on to refer to his Honour’s later conclusion, at paragraph 308 of his reasons, that his orders could not “reflect an equal shared time parenting arrangement for the children” which he had determined to be in their best interests for practical reasons, before submitting “that his Honour should not have come to the conclusion that he did in relation to equal shared care until he had looked at all the factors he had to take into consideration”.
We can only assume that the complaint contained in Ground 7 is that before determining (in paragraph 265) that an equal shared care or time arrangement was in the children’s best interests, his Honour should have first considered all the matters which he subsequently considered in his reasons, being, again presumably, the advantages and disadvantages of each party’s proposals.
We further assume that it must be the wife’s case that had those further matters been considered in advance of the conclusion concerning equal shared time, then his Honour would have concluded that it would be in the children’s best interests to reside principally with their mother in Melbourne.
However, the difficulty for the wife is that the findings which his Honour made subsequent to finding “that if it is at all feasible the children should be able to live in a shared equal time parenting arrangement” clearly favoured the husband. We are thus at something of a loss to understand the real point of Ground 7.
In the event that Ground 7 is in fact directed to his Honour’s application of the relevant statutory provisions, we make the following observations.
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
In the present case his Honour determined (in paragraphs 259 and 261 of his reasons) that there was to be equal shared parental responsibility for the children. Thus he was obliged under s 65DAA to consider first whether it would be in their best interests to spend equal time with each parent and whether such an arrangement was “reasonably practicable”. In this context, his Honour concluded (at paragraph 265) having had regard to the recommendations of the Family Consultant, that “if it is at all feasible the children should be able to live in a shared equal time parenting arrangement”.
However, later in his reasons (at paragraph 308), and after examining the advantages and disadvantages of each party’s proposal, his Honour recognised that his orders could not reflect an equal shared time parenting arrangement because the wife would be residing in Melbourne.
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings. On the contrary, the majority in Taylor & Barker said (emphasis added):
60. …It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA…
62. … given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
In the present case, having concluded that it would be in the children’s best interests to be able to live in a shared parenting arrangement “if at all feasible”, his Honour then proceeded to examine the advantages and disadvantages of each party’s proposal.
Then, clearly against the background of that examination of the competing proposals and also of his conclusion (expressed in paragraph 291) that his consideration of the s 60CC matters had led him to find that the children’s best interests would more likely be promoted by the husband rather than the wife, his Honour concluded (in paragraph 304) that it was the husband’s proposal for the children’s future care which would be the most likely, of the competing proposals, to promote the children’s emotional wellbeing and their relationship with both their parents.
His Honour then explained (in paragraph 308) that an equal shared parenting arrangement, which he concluded would have been in the children’s best interests, could not be put in place for the practical reason that the wife would be residing in Melbourne.
Thus as we understand his Honour’s reasons, his preference was for an equal shared parenting arrangement. But such arrangement was not possible because the wife would be residing in Melbourne and her time in Sydney would in the long term be limited. His Honour therefore had to decide with which parent the children would principally live. His preference was for the husband for the reasons which clearly emerge from his judgment.
It is true that his Honour considered the parties’ competing proposals in the context of applying the guidelines in A v A (which was of course decided prior to the amendments made to Part VII in July 2006), rather than as part of his consideration of s 65DAA. But in so doing he could not, in our view, be said to be wrong in the appellate sense.
No argument was directed to the extent to which the application of the guidelines in A v A (supra) continues to be helpful in light of the 2006 amendments to Part VII. For that reason, other than to note it, we do not propose to explore that issue further in this case.
It is also true that having ultimately found equal time not to be feasible (in other words, “not reasonably practicable”) his Honour did not then expressly consider the possibility of the children spending “significant and substantial time” with the wife. However, as his orders can be seen as meeting this description, our interference with them is not warranted.
It must also be borne in mind that his Honour’s decision was given in May 2007 which was some months before the delivery of the Full Court decision in Taylor & Barker (supra).
For the reasons which we have given, we find no substance in Ground 7.
The alleged failure to consider the “qualitative and differing nature of the relationships between the parties and the children”
By Ground 8 it is asserted that his Honour “erred in failing to have regard to the qualitative and differing nature of the relationship between the parties and the children in determining whether it was in the best interests to make orders in the terms he ultimately made”.
In support of this ground, it was submitted by senior counsel for the wife that at paragraph 227 of his reasons his Honour had said (in the context of his consideration of the s 60CC(3) matters) that the children in this case “have a good and close relationship with each of their parents”, but that he had made no detailed assessment of the differing relationships of the children with the husband and the wife particularly having regard to the fact that the wife had been their main care-giver prior to the separation, and to the evidence of the Family Consultant regarding the relationship of the child, T, with the wife and regarding the possible need of an adolescent female child for her mother and the children’s sense of abandonment if the wife was to live in Melbourne without them.
Again we consider there is no substance in this ground. As was submitted by senior counsel for the husband, the time which a parent had historically spent with a child does not indicate the quality of the relationship, and in this case the evidence of the relationship between T and the wife would not advance her case.
Further, the Consultant’s oral evidence concerning the possible need of an adolescent girl for her mother was to the effect that it would depend on the child in question and thus does not advance the wife’s case (see transcript of 3 May 2007 at page 261).
As to the risk of the children feeling abandoned if the wife moved to Melbourne without them, his Honour explored this concern at some depth with the Consultant when she was giving her oral evidence (see transcript of 3 May 2007 at pages 265-6). Given the equivocal and speculative nature of the Consultant’s responses (which might well be expected), it is understandable that this was not a matter upon which his Honour concerned himself in his judgment.
The apparent finding of an entitlement for the husband to participate in every aspect of the children’s lives
By Ground 9 it is asserted that:
9. … the learned trial judge erred in law in apparently finding that there was an entitlement for the [husband] to “participate in every aspect of [the children’s] life as he does now…” but no similar right apparently should be afforded to the [wife].
Again no oral submissions were made in support of this ground. But it appears from the written submissions on behalf of the wife that this ground is directed to the last sentence of the following paragraph in his Honour’s reasons where he was considering the matter in s 60CC(3)(d) being, in summary, the likely effect on a child of a change in circumstances or separation from a person with whom he or she has been living:
232. Whatever result is arrived at in this case, that is whether the children live in Melbourne with their mother or live in Sydney with their father, the changes for them will be considerable. When considering that statement it is not realistic in my view to simply add up all of the time in each year that the children will spend with a parent and say there is little change overall to the current arrangement. The evidence of the Family Consultant (and it is a matter of common sense) that seeing a parent for the bulk of the available school holidays and hardly any time during school term is a very different experience for the children than that which they have now with both parents involved in term time, week days, weekends and school holidays. Ultimately how much time the mother may spend with the children in Sydney if they live with their father will be largely governed by her ability to tolerate living in two cities as she has been for some time now and to be away from her husband as often as she is now. If the children live in Melbourne they will see significantly less of their father and the time they will see him will be largely on weekends. He will not be able to participate in every aspect of their life as he does now. (Emphasis added)
It is true that his Honour did not go on to say that the wife’s involvement in every aspect of the children’s lives would also be reduced if they were not living in the same city as her. However, this omission can be regarded as being of no real consequence when regard is had to his Honour’s conclusions in the immediately following paragraph concerning the likely effect on the children if the involvement of either parent in their lives was to be reduced:
233. It can fairly be said in this case that the children will very much miss the involvement of either parent in their lives if that involvement is reduced by the effect of the orders of the Court. Given that they may not have the same balance in their parenting as they now receive it must be predicted that they will be affected.
The alleged onus on the wife to justify her decision to reside in Melbourne
Ground 10 is in the following terms:
10. That the learned trial judge erred in law in finding in circumstances where the parties had lived in at least two countries for significant periods of at least the elder children’s lives, an onus apparently rested upon the [wife] to justify her decision to reside in Melbourne (see for example Judgment ¶ 232).
We have when discussing Ground 9 set out paragraph 232 from his Honour’s reasons. We do not see how anything said by his Honour in that paragraph would support the complaint of the appellant contained in Ground 10 that an onus was placed on the wife to justify her decision to move to Melbourne. No oral submissions were made to assist us in this regard, nor are the references to various other paragraphs of his Honour’s reasons, which are to be found in the written submissions in support of the ground, of any apparent assistance.
Nevertheless, in the event that we have misunderstood those references, or indeed the submissions on behalf of the wife, we would say that we agree with the submission made by senior counsel for the husband in opposition to Ground 10, that:
25. …On no fair reading of his Honour’s judgment can it be identified that he determined this case by imposing upon the appellant an onus to justify her decision to reside in Melbourne.
The alleged finding of “controlling behaviour” on the part of the wife
Ground 11 asserts that his Honour “erred in:
11. …finding that the [wife] exhibited “controlling” behaviour in particular because that finding depended upon inter alia:
11.1The learned trial judge’s erroneous understanding of the existing consent orders which led him to the erroneous conclusion that it was inappropriate for the [wife] to have the children cared for by third parties on occasion in Sydney when that care was at all times consistent with order 7.2;
11.2The learned trial judge’s erroneous finding that the wife unreasonably objected to the child [A] spending time with her paternal grandparents (Judgment ¶ 51 ff).”
In support of this ground, senior counsel for the wife first directed our attention to Order 7.2 of the orders made by consent on 6 July 2005 which provided:
7.2 That in the event that either parent is unavailable to care for the children for a period exceeding 24 hours, then that parent shall immediately inform the other parent and give that other parent the first option to care for the children whilst he or she is unavailable;
Senior counsel for the wife then relied on a number of paragraphs of his Honour’s reasons to support this ground. Those paragraphs were first paragraphs 52 to 60 in which his Honour records the wife’s affidavit evidence concerning the matter apparently referred to in paragraph 11.2 of Ground 11. It is unnecessary to set out these nine paragraphs, but we do set out his Honour’s observations which immediately followed in paragraph 61 and on which reliance is now placed by the wife:
61. In my opinion this incident demonstrates the very worst of parenting by each of the [wife] and [husband]. Ultimately it is my view that the request made by the [husband] on 10 July 2006 by email to be able to take the children skiing and have [A] stay with his relatives in [country New South Wales] was a reasonable request. That request was not replied to by the [wife] in the affirmative and consequently the children did not go skiing. I have no doubt that [A] would have enjoyed her time with her cousins in [country New South Wales] as is effectively acknowledged by the [wife] in her affidavit material where she acknowledged that she had no objection to the children spending time with those relatives in [country New South Wales]. It also appears from the [wife’s] affidavit that her stated plan to “spend some quality one on one time together” with [A] actually involved [A] spending time with the [wife] in Melbourne with her husband. Thus the one on one time was to be two on one time with the [wife] and [Mr M].
It should be noted that in paragraph 61, his Honour is critical of both parents. The wife then complains that when his Honour came to consider the capacity of each parent to provide for the needs of the children (in the context of s 60CC(3)(f)) his Honour made adverse findings in paragraph 242 only about her in relation to the events which had led to adverse criticisms of both parents earlier in paragraph 61:
242. I find that the [wife] would not be able to hide from her children the feelings of hostility which she feels for the [husband]. Those feelings were seen by me in the oral evidence and also the written evidence of the [wife]. She used words such as “detest” and “severely dislike” to describe her feelings for the [husband]. Further although she displayed an acknowledgement of the importance of the [husband] in the children’s lives she did not display that she had any regard for him as a person. Quite the contrary. She described him as a “bully” and a “controller” in circumstances where I thought the tags were not appropriate. I am of the opinion that the [wife] has displayed controlling behaviour which she did not recognise as such. Examples I am able to readily recall include negotiations between the parties about the lost ski weekend. Negotiations about the “Sunday nights” when the [wife] stays in Melbourne and has a relative or friend care for the children in Sydney. Negotiations about swapping other week nights to suit the children’s changed routines. Restricting the [husband’s] telephone contact with the children whilst they are in her care. I have been critical of the [husband’s] role in some of those events also as detailed elsewhere in these reasons. I conclude that on the balance of probabilities the [wife] could not create for the children in her house a positive image of their father. In such circumstances it could be confusing and damaging to their development. It would not fulfil their emotional needs.
While it may well be that when the wife behaved in a way which attracted adverse criticism from his Honour, she would have been entitled to justify her position on the basis of the consent orders, it is clear to us that his Honour’s concern was with her attitude to parenting. It is true that he was overall far more critical of the wife than of the husband in this regard. But it has not been established that on the evidence overall, he was in error in such criticism. Thus this ground has not been established.
Whether “shared parenting” was appropriate in the circumstances of this case?
Ground 12 is as follows:
That the learned trial judge erred in making orders for shared parenting where he found inter alia:
12.1That the parties had an inability to communicate;
12.2That the parties on the evidence would not live proximate to each other; and
12.3That the parties had differing approaches to the appropriate manner for parenting their children.
It has to be assumed because of the reference in the written submissions on behalf of the wife to s 65DAA(5), that the expression “shared parenting” in this ground is to the concept of shared time (in the sense of “equal time” or “substantial and significant time”) rather than to shared parental responsibility (or more precisely “equal shared parental responsibility”).
Section 65DAA(5) provides:
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
In support of this ground it was submitted for the wife that his Honour had erred in giving the factors set out in paragraphs (a), (c) and (e) of the subsection insufficient weight.
We acknowledge that his Honour did not make findings which were specifically directed to the various matters in certain of the paragraphs in s 65DAA(5) which are referred to in Ground 12.
But those matters were certainly canvassed by his Honour at various places in his reasons.
Given his conclusions in paragraph 291 to the effect that the s 60CC matters favoured the husband and in paragraph 304 that the husband’s proposals would best promote the children’s future emotional wellbeing and relationships with each parent, it is difficult to see how the placing of greater weight by his Honour on the parties’ inability to communicate, or on the distance between their residences, or on their different parenting approaches, could have assisted the wife’s case.
Furthermore, we agree with the submissions of senior counsel for the husband, that the parties themselves had in their consent orders of July 2006 agreed upon a “shared parenting regime” and that this is what the children wanted and what the Consultant recommended.
We thus find no merit in Ground 12.
The trial judge’s conclusions regarding Mr M
The wife’s final ground of appeal, Ground 13, asserts that his Honour:
13. …erred in finding as a fact that [Mr M] arrived late at a sporting event with the child [T] and as a consequence formed an adverse view as to the child’s step father (Judgment ¶ 95 ff)
As the ground as drafted indicates, the finding of a late arrival at a sporting match by Mr M and the child, T, is to be found in paragraph 95 of his reasons where his Honour was recording some of the content of Mr M’s affidavit evidence. In order to put this finding in context we now set out paragraphs 94, 95 and 96 of his Honour’s reasons:
94. In paragraph 40 of his affidavit [Mr M] refers to a further incident which he said occurred in June 2006. He explains that [T] and [J] had a clash in their Saturday sporting schedules and [the wife] had suggested to [the husband] that he could take one of the children to their games if [the husband] called [the wife] by 8.00 pm on Friday night. [The husband] had not called and on Saturday morning [the wife] said to me words to the effect, “I’ll take [J] to soccer and you take [T] and [A] to his rugby game I will then join you at rugby after [J’s] soccer game.” The affidavit then recites that after [the wife] had left with [J], [the husband] rang [the wife’s] phone number and said, “Can I take [T] to rugby?” I said to [the husband] words to the effect, “Arrangements have been organised as you did not get back to [the wife] last night.” In this trip apparently [Mr M] had failed to ensure that [T] had his rugby gear and approximately thirty minutes into the trip he ascertained that [T] was not properly equipped. [Mr M] stopped at a chemist to get a new mouthguard for [T] and advised [T] that he could borrow some shoes from one of the other boys who had just finished a game. On route to the field [Mr M] said that the father had rung him three times to ask, “Where are you?”
95. In paragraph 41, although not confessing outright to this fact it is apparent that [Mr M] arrived late with [T] to start his match. [The husband] approached [Mr M] and said, “How could you do this to my son?” [Mr M] replied [to the husband], “…[I]t’s okay, [T] hasn’t missed the game and he can still play. [T] just made a mistake he forgot his bag.”
96. The material set out in paragraph 40 and 41 of the affidavit of [Mr M] raised concerns for me. In the first place there does not appear to be any reason why [T] could not have been taken to the rugby match by [the husband] even though he had not returned the [wife’s] call by the 8.00 pm deadline which the [wife] had set. In my opinion it was highhanded and insensitive on the part of [Mr M] to have taken the stand he did and it does not augur well for the children in the future if their care is to be shared by [the wife] with [Mr M] and he continues to apply his supervision of them in the manner illustrated in the paragraphs in his affidavit above referred to.
In our view, the finding of a late arrival in the first sentence of paragraph 95 of his Honour’s reasons was open to him.
To the extent his Honour can be read in the above paragraphs as having formed an adverse view of Mr M, we do not consider that the finding of a late arrival was the cause of any such adverse view. Rather it was Mr M’s refusal to vary the arrangements to allow the husband to take T to the sporting event which was the subject of his Honour’s adverse criticism of Mr M.
Accordingly this ground has no merit.
Conclusion
As none of the wife’s grounds of appeal have succeeded, her appeal must be dismissed.
Costs of the appeal
In the event that the appeal was to be dismissed, the husband sought an order for costs in his favour.
We are of the view that the circumstances (being particularly the lack of success of the appeal and the lack of any great substance in many of the grounds of appeal) justify an order that the wife pay the husband’s costs of and incidental to the appeal, with such costs to be assessed in default of agreement and to be payable within three months of the date of agreement or assessment.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 16 September 2008
110
0
1